Law Office of
Kirk K. Livermont

Estate planning is an
individual determining who will receive the benefit of their property
after death.There are many
tools available to implement an estate plan, some involve use of the court
system while others avoid court.

Probate is a process
using the court to implement the desires contained in an individual's last
will and testament. In addition to probate there are other simplified
court procedures to transfer property interests upon death, these include
small estates, under $100,000, and spousal property petition.

Probate and these
alternatives are also used when the individual dies without a will,
intestate.

Holding title in joint
tenancy is the most common tool to avoid probate.This is because by operation of law upon the death of a joint
tenant the remaining joint tenant(s) receive that persons interest in the
property.This result cannot
be affected by either the court or the individual's last will and
testament.

In addition to joint
tenancy, some other methods to avoid probate are pay on death (POD)
clauses for financial accounts and the increasingly popular Living Trust.

Before commencing
development of an estate plan, one should understand what probate is,
including the procedure, time frames and costs.

Probate is in essence
the gathering of decedent's assets (creating a probate estate), payment of
decedent's debts and distributing the remaining assets to decedent's heirs
either identified in the will (testate) or by statute (intestate).

The detailed probate
procedure is :

1. File
Petition for Probate with the Superior Court in the county of residence or
where real property owned by decedent is located.

2. Publish
Notice of Petition in a newspaper of general circulation in that county.

3. Obtain
Order for Probate at a court hearing, assuming no objection is raised.

4. If
required, obtain and file fiduciary bond with the court.

5. Obtain
Letters Testamentary (testate) or Administration (intestate or
administrator not individual named in will).

6. Mail
notice of death to California Department of Health Services (MediCal
recovery).

7. Mail
Creditor's Notice to all known and potential creditors of the decedent
which can be ascertained with reasonable effort.

13. Liquidate
sufficient assets to pay the costs of probate and the allowed creditors'
claims, which may be an involved process with several court appearances
depending on the type of property.

14. Pay the
allowed creditor claims.

15. Obtain
MediCal clearance from California Department of Social Services.

16. Prepare
and file an Final Accounting And Proposed Distribution.The Final Accounting would be identification of assets at time of
death, details of sales of those assets and payments to creditors leaving
the remaining assets.The
Proposed Distribution would included proposed fees and costs of
administration and a proposed final distribution of the remaining assets.

17. Obtain
Order Approving Final Accounting and Distribution during court hearing,
assuming no objection.

18. Distribute
assets, withholding funds as a reserve for income taxes.

19. Prepare
and file the appropriate tax returns along with tax payment.

20. Distribute
any remaining funds in the reserve.

21. Obtain
final discharge from court.

The final discharge
terminates the probate procedure.

The above description is
intended to provide an overview of the probate process.There may be many additional steps depending upon the nature and
extent of property to be sold and divided as well as if property is owned
in another state.

A probate may extend
over several years, particularly if there is real property to be sold.The shortesSeanda Daileyt length of time for a probate is six months.This is one month for publication of Notice of Probate, four months
for creditors claims and one month to prepare and give notice of hearing
on final accounting.

This article is intended
to provide an insight into the probate process.The next article will discuss the costs of probate and the other
two alternatives using the courts to distribute property, small estate and
spousal property petition.

Future articles will
cover the ramifications of how title is held to property, living trusts
and other estate planning issues.

Kirk Livermont is an
attorney with a private practice located in Independence, California
providing comprehensive estate planning services.